Relationship to Crimes against Humanity
There is an obvious overlap between the definitions of genocide and crimes against humanity,
set out in articles 6 and 7 respectively of the Rome Statute. Should charges p. 143) proceed on
the basis of both provisions, judges of the International Criminal Court will have to decide
whether to allow cumulative convictions. With respect to cumulative convictions for
genocide and crimes against humanity, there is much authority for the proposition that
genocide is an aggravated form of crimes against humanity.136 But it has been held that
convictions for both genocide and crimes against humanity are permitted because they have
materially distinct elements.137 In Musema, the Appeals Chamber of the International
Criminal Tribunal for Rwanda said that convictions for genocide and for extermination as a
crime against humanity, based on the same set of facts, are permissible.138 According to the
Appeals Chamber, genocide requires proof of intent to destroy, in whole or in part, a national,
ethnic, racial, or religious group, whereas the crime against humanity of extermination
requires proof that the crime was committed as part of a widespread or systematic attack on
a civilian population.139 The Appeals Chamber of the International Criminal Tribunal for the
former Yugoslavia upheld and developed this conclusion in Krstić, overturning a refusal to
enter cumulative convictions for genocide and crimes against humanity because the Trial
Chamber had considered that ‘both require that the killings be part of an extensive plan to kill
a substantial part of a civilian population’.140 The Appeals Chamber said that such an
‘extensive plan’ had been held not to constitute an element of either genocide or crimes
against humanity. Moreover, according to the Appeals Chamber, genocide need not be
committed as part of a widespread or systematic attack, nor must genocide be limited to a
‘civilian population’.141
References:
136. For the various authorities, see: William Schabas, Genocide in International Law, 2nd
edn, Cambridge: Cambridge University Press, 2009, p. 13.
137 Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras 369–70; Ntakirutimana et
al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 864; Nahimana et
al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1090. See: Fulvio
Maria Palombino, ‘Should Genocide Subsume Crimes against Humanity? Some Remarks in
the Light of the Krstić Appeal Judgment’ (2005) 3 JICJ 778; Antonio Cassese, ‘Genocide’, in
Cassese, Rome Statute, pp. 335–51, at pp. 339–40.
